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									      Case 2:10-cv-01413-SRB Document 56           Filed 07/20/10 Page 1 of 10



 1   Geoffrey S. Kercsmar (#20528)
     Gregory B. Collins (#023158)
 2   KERCSMAR & FELTUS PLLC
     6263 N. Scottsdale Road, Suite 320
 3   Scottsdale, AZ 85250
     Tel: (480) 421-1001
 4   gsk@kflawaz.com
     gbc@kflawaz.com
 5
     Paul J. Orfanedes
 6
     (Motion for admission pro hac vice to be filed)
 7   James F. Peterson
     (Motion for admission pro hac vice to be filed)
 8   Michael Bekesha
     (Motion for admission pro hac vice to be filed)
 9   JUDICIAL WATCH, INC.
10
     425 Third Street, S.W., Suite 800
     Washington, DC 20024
11   Tel: (202) 646-5172

12   Attorneys for Proposed Intervenor/Defendant Russell Pearce
13
                        IN THE UNITED STATES DISTRICT COURT
14                          FOR THE DISTRICT OF ARIZONA
15
     The United States of America,             )   Case No.: 2:10-cv-01413-SRB
16                                             )
                 Plaintiff,                    )
17                                             )
                                               )   STATE SENATOR RUSSELL
18   v.                                        )   PEARCE’S REPLY IN SUPPORT OF
                                               )   MOTION FOR INTERVENTION AS
19   The State of Arizona; and Janice K.       )   DEFENDANT AND REQUEST FOR
     Brewer, Governor of the State of Arizona, )   EXPEDITED RULING
20
     in her Official Capacity,                 )
                                               )
21                                             )
                 Defendants.                   )
22
           State Senator Russell Pearce, by counsel, respectfully submits this Reply in
23

24   support of his Motion for Intervention as Defendant and Request for Expedited Ruling

25   (the “Motion”). As grounds therefor, Senator Pearce states as follows:



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      Case 2:10-cv-01413-SRB Document 56             Filed 07/20/10 Page 2 of 10



 1                   MEMORANDUM OF POINTS AND AUTHORITIES
 2
     I.     Senator Pearce is entitled to intervene as a matter of right.
 3
            The Court of Appeals for this Circuit has recognized that a motion for intervention
 4
     is to be “broadly construed in favor of applicants for intervention.” United States ex rel.
 5

 6   McGough v. Covington Technologies Co., 967 F.2d 1391, 1394 (9th Cir. 1992); United

 7   States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986) (“In applying this test we are
 8
     guided primarily by practical considerations.”). Since Senator Pearce is the sole
 9
     legislative author and chief sponsor of Senate Bill 1070, as amended by House Bill 2162
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     (“SB 1070”), it makes practical sense and is well within this Court’s discretion for
11

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     Senator Pearce to be permitted to intervene. As the author and chief sponsor of SB 1070,

13   Senator Pearce has a unique interest in and perspective on SB 1070, and he is entitled to

14   assist in its defense. Plaintiff moreover does not contest Senator Pearce’s assertion that
15
     Plaintiff itself recognized his unique interest when it singled out Senator Pearce in its
16
     motion. See “Plaintiff’s Motion for Preliminary Injunction and Memorandum of Law in
17
     Support Thereof” at 38, fn. 34.
18

19          A.     Senator Pearce has demonstrated that courts allow legislators to
                   intervene in defense of a statute.
20
            As Senator Pearce demonstrated in his motion, it is not unusual for a court to
21

22
     allow legislators to intervene in defense of a statute. See, e.g., Yniguez v. State of

23   Arizona, 939 F.2d 727, 732 (9th Cir. 1991) (“[T]he Supreme Court held that state

24   legislators who intervened in their official capacities to defend a lawsuit challenging the
25
     constitutionality of a statute” only lacked standing after they left office). While Plaintiff


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      Case 2:10-cv-01413-SRB Document 56            Filed 07/20/10 Page 3 of 10



 1   attempts to distinguish the numerous cases cited by Senator Pearce in which state
 2
     legislators were granted leave to intervene by focusing on the varying factual
 3
     circumstances of those cases, Plaintiff’s reliance on simply one case is particularly inapt.
 4
     See Plaintiff’s Response at 3 (citing Center for Biological Diversity v. Brennan, 571 F.
 5

 6   Supp. 2d 1105 (N.D. Cal. 2007). In that case, which Plaintiff claims occurred in a “very

 7   similar context” to that of the instant Motion, U.S. Senator John Kerry and Congressman
 8
     Jay Inslee attempted to intervene as plaintiffs and sought a declaration that government
 9
     officials were “in violation of the Global Change Research Act” and to compel the
10
     officials to issue a report. Id. at 1113. They did not move to intervene to defend the
11

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     constitutionality of a statute. In sharp contrast, Senator Pearce has cited cases in which

13   legislators successfully intervened as defendants to defend the constitutionality of a

14   statute. Senator Pearce in this case has a unique and undisputed interest as the sole
15
     legislative author and chief sponsor of SB 1070, and it is well within this Court’s
16
     discretion to grant Senator Pearce’s motion on that basis.
17
            B.     Senator Pearce has shown that representation of his interests may be
18
                   inadequate.
19
            To establish intervention as a matter of right, a proposed intervenor must show
20
     that his interest is “inadequately represented” by the parties to the action. Plaintiff
21

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     mischaracterizes this burden. As the Ninth Circuit has held, the requirement of

23   “inadequacy of representation is satisfied if the applicant shows that representation of its

24   interests ‘may be’ inadequate and that the burden of making this showing is minimal.”
25
     Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983). Senator Pearce


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 1   demonstrated that defendants may not adequately represent his interests, by noting that,
 2
     among other things, the Governor’s likely legal defense of SB 1070 does not address
 3
     certain aspects of the law that Senator Pearce views as critical, such as severability.
 4
            Plaintiff asserts that Senator Pearce must show that the defendants “cannot, or will
 5

 6   not, adequately defend the constitutionality of S.B. 1070 due to their adversity of interest,

 7   collusion, or nonfeasance.” Response at 6. This is simply incorrect. The Ninth Circuit
 8
     addressed precisely this point and explained:
 9
                   We also agree that thus far in this litigation, the government,
10                 through the United States Attorney, has continued
                   professionally and diligently to defend the actions of
11                 Secretary Andrus; there is no indication in this record of
12
                   collusion or of any other conduct detrimental to the
                   applicant's interest. Nevertheless, such a showing is not
13                 required.

14   Sagebrush Rebellion, 713 F.2d at 528 (emphasis added). Senator Pearce has met his
15
     burden under this Circuit’s precedent.
16
     II.    Permissive intervention should be granted.
17
            Plaintiff argues that Senator Pearce does not qualify for permissive intervention
18

19   because he cannot show that he has Article III standing. Response at 7. But no such

20   requirement exists in this Circuit.
21          A party does not need independent standing to intervene in existing litigation
22
     under Rule 24(b), as long as another party on its side meets the requirements of Article
23
     III standing. “[T]he requirement of a legally protectable interest applies only to
24
     intervention as of right under Rule 24(a), not permissive intervention under Rule 24(b).”
25

     Employee Staffing Services, Inc., v. Aubry, 20 F. 3d 1038, 1042 (9th Cir. 1994); see also

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      Case 2:10-cv-01413-SRB Document 56           Filed 07/20/10 Page 5 of 10



 1   Yniguez v. Arizona, 939 F. 2d 727, 731 (9th Cir. 1991) (noting that a potential intervenor
 2
     requires standing only when no other party with standing remains in the litigation).
 3
     Permissive intervention without Article III standing also is common in other circuits.
 4
     See, e.g., Dillard v. Baldwin County Comm’rs, 225 F.3d 1271, 1277-78 (11th Cir. 2000)
 5

 6   (“[A] party seeking to intervene into an already existing justiciable controversy need not

 7   satisfy the requirements of standing as long as the parties have established standing
 8
     before the court.”); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989) (“[A]
 9
     party seeking to intervene need not demonstrate that he has standing in addition to
10
     meeting the requirements of Rule 24 as long as there exists a justiciable case and
11

12
     controversy between the parties already in the lawsuit”); San Juan County v. U.S., 503

13   F.3d 1163, 1171-72 (10th Cir. 2007) (reasoning that the Supreme Court has on many

14   occasions found an intervenor’s lack of standing unimportant as long as another party in
15
     the case did have standing, and thus “parties seeking to intervene under Rule 24(a) or (b)
16
     need not establish Article III standing ‘so long as another party with constitutional
17
     standing on the same side as the intervenor remains in the case.’” (citing San Juan
18

19   County v. U.S., 420 F.3d 1197, 1205 (10th Cir. 2005)); Shaw v. Hunt, 154 F.3d 161, 165

20   (4th Cir. 1997) (“[A] party who lacks standing can nonetheless take part in a case as a
21   permissive intervenor.”); U.S. Postal Service v. Brennan, 579 F.2d 188, 190 (2nd Cir.
22
     1978) (“The existence of a case or controversy having been established as between the
23
     [parties], there was no need to impose the standing requirement upon the proposed
24
     intervenor.”). Hence, contrary to Plaintiff’s claim, Senator Pearce satisfies the threshold
25

     requirement for permissive intervention.

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      Case 2:10-cv-01413-SRB Document 56              Filed 07/20/10 Page 6 of 10



 1          Plaintiff also does not contest that Senator Pearce has a defense that shares with
 2
     the main action a common question of law or fact. As asserted in his motion, Senator
 3
     Pearce, from his unique position as author and chief sponsor of SB 1070, has a defense to
 4
     the main action that shares both common questions of law and fact, albeit with a different
 5

 6   perspective. The Court will need to examine the same law and the same facts to

 7   adjudicate these claims.
 8
            Finally, Plaintiff asserts that Senator Pearce should not be granted intervention
 9
     because “there are already a number of related actions and numerous additional filings by
10
     non-parties.” Response at 8. Plaintiff does not, however, cite any case law or otherwise
11

12
     explain why this fact should deprive Senator Pearce of the opportunity to defend SB

13   1070. Notably, Plaintiff does not contest Senator Pearce’s assertions that his intervention

14   will neither prejudice nor delay this case in any way. Thus, at a minimum, Senator
15
     Pearce is entitled to permissive intervention.
16
     VII.   Conclusion
17
            For the foregoing reasons, Senator Pearce respectfully requests that this Court
18

19   grant leave to Senator Pearce to intervene as a Defendant in this action.

20   Dated: July 20, 2010                       Respectfully Submitted,
21                                              KERCSMAR & FELTUS PLLC
22
                                        By:     /s/ Geoffrey S. Kercsmar
23                                              Geoffrey S. Kercsmar (#20528)
                                                Gregory B. Collins (#023158)
24                                              6263 N. Scottsdale Road, Suite 320
                                                Scottsdale, AZ 85250
25
                                                Tel: (480) 421-1001


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      Case 2:10-cv-01413-SRB Document 56            Filed 07/20/10 Page 7 of 10



 1                                             Paul J. Orfanedes
 2
                                               (Motion for admission pro hac vice to be filed)
                                               James F. Peterson
 3                                             (Motion for admission pro hac vice to be filed)
                                               Michael Bekesha
 4                                             (Motion for admission pro hac vice to be filed)
                                               JUDICIAL WATCH, INC.
 5
                                               425 Third Street, S.W., Suite 800
 6                                             Washington, DC 20024
                                               Tel: (202) 646-5172
 7
                                               Attorneys for Proposed Intervenor/Defendant
 8
                                               Russell Pearce
 9
                                   CERTIFICATE OF SERVICE
10
            I hereby certify that on July 20, 2010, I electronically transmitted the foregoing to
11
     the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of
12
     Electronic Filing to the following:
13
     Plaintiff United States of America
14   Represented by Joshua Wilkenfeld
     joshua.i.wilkenfeld@usdoj.gov
15
     Edwin S. Kneedler
16   Edwin.S.Kneedler@usdoj.gov
17
     Varu Chilakamarri
18   varudhini.chilakamarri@usdoj.gov

19   Defendant State of Arizona and Janice K.
     Brewer, Governor of the State of Arizona
20
     Represented by John J. Bouma
21   jbouma@swlaw.com

22   Joseph G. Adams
     jgadams@swlaw.com
23

24   Joseph Andrew Kanefield
     jkanefield@az.gov
25
     Robert Arthur Henry

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      Case 2:10-cv-01413-SRB Document 56       Filed 07/20/10 Page 8 of 10



 1   bhenry@swlaw.com
 2
     Amicus Center on the
 3   Administration of Criminal Law
     Represented by Anne Milgram
 4   anne.milgram@nyu.edu
 5
     Anthony S. Barkow
 6   anthony.barkow@nyu.edu

 7   Ellen London
     elondon@fklaw.com
 8

 9   Jessica Alexandra Murzyn
     jmurzyn@fklaw.com
10
     Ricardo Solano, Jr.
11   rsolano@kflaw.com
12
     Timothy J. Casey
13   SCHMITT, SCHNECK, SMYTH & HERROD, P.C.
     Special Assistant Attorney General for Michigan
14   For Amici Curiae Michigan, Florida, Alabama,
     Nebraska, Northern Mariana Islands, Pennsylvania,
15
     South Carolina, South Dakota, Texas and Virginia
16   timcasey@azbarristers.com

17   Carolyn B. Lamm (pro hac vice)
     Stephen N. Zack (pro hac vice)
18
     Sara Elizabeth Dill (pro hac vice)
19   Andrew Silverman (pro hac vice)
     American Bar Association
20   clamm@whitecase.com
     szack@bsfllp.com
21   sdill@pkjlaw.com
22
     Joseph M. Livermore
23   University of Arizona
     James E. Rogers
24   College of Law
     silverman@law.arizona.edu
25

     Barnaby W. Zall

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      Case 2:10-cv-01413-SRB Document 56            Filed 07/20/10 Page 9 of 10



 1   American Unity Legal Defense Fund, Inc.
 2
     bzall@aol.com

 3   Stephen G. Montoya
     stephen@montoyalawgroup.com
 4   april@montoyalawgroup.com
 5
     Donald M. Peters
 6   Kristin Mackin
     Jeffrey T. Murray
 7   Attorneys for Arizona Municipal
     Risk Retention Pool
 8
     dpeters@lasotapeters.com
 9   kmackin@lasotapeters.com
     jtmurray@lawms.com
10
     D. Q. Mariette Do-Nguyen
11   Kingdom of Heaven
12
     D.Q_Mariette@wdcic.org

13   In addition a COURTESY COPY was mailed this day to:
     HONORABLE SUSAN R. BOLTON
14   United States District Court
     Sandra Day O’Connor U.S. Courthouse, Suite 522
15
     401 West Washington Street
16   SPC 50
     Phoenix, Arizona 85003-2153
17

18   Notice will be sent by other means to those listed below if they are affected by this filing:
19   B. Eric Restuccia
     Office of the Attorney General
20
     P.O. Box 30212
21   Lansing, MI 48909

22   James F. Peterson
     Judicial Watch Inc.
23   425 3rd St SW
24
     Ste. 800
     Washington, DC 20024
25




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     Case 2:10-cv-01413-SRB Document 56   Filed 07/20/10 Page 10 of 10



 1   Mark Sands
 2
     Office of the Attorney General
     P.O. Box 30212
 3   Lansing, MI 48909

 4   Paul J. Orfanedes
     Judicial Watch Inc.
 5
     425 3rd St SW
 6   Ste. 800
     Washington, DC 20024
 7
     Ray Elbert Parker
 8
     P.O. Box 320636
 9   Alexandria, VA 22320

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11
     By    s/ Geoffrey S. Kercsmar
12

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